This directive will continue to have important effects on how employment tribunals in Britain interpret and apply discrimination law, even after Brexit.
- The Framework Employment Directive is the key directive obliging member states to enact anti-discrimination legislation for disabled people. It is limited to employment and related areas.
- There are numerous instances where the Directive has been – and after Brexit continues to be – important in interpreting the Equality Act, eg on the meaning of ‘disability’: below Where may EU law be affecting UK courts’ interpretation of the Equality Act now?
- The UK courts mainly take the Directive into account by interpreting the Equality Act to comply with it where possible (called the Marleasing principle). That can include departing from the words of the Equality Act. This apparently continues after 31st December 2020, ie after Brexit, so far as the Equality Act is not amended by Parliament. Below How do UK courts take the directive into account?
- It seems that unlike the Equality Act, disability discrimination law in Northern Ireland (separate page) must continue to comply with the EU Framework Employment Directive even after 2020. It cannot be amended to be inconsistent with the Directive.
- In the past, various changes have been made to British disability discrimination legislation to reflect the Directive.
Broadly, this European Union directive applies to discrimination in the area of employment, self-employment, and ‘occupation’. It covers discrimination on grounds of religion or belief, disability, age or sexual orientation. Both direct and indirect discrimination are covered. It includes a requirement to make reasonable accommodation for disabled people.
The full text of this directive 2000/78/EC is on the EurLex website. The directive was unanimously passed by the EU Council of Ministers in 2000, so the UK agreed to it. Indeed the directive was influenced by UK disability legislation.
What is a directive?
A directive is legislation by the European Union which is not intended to apply directly in member states (though it may have direct effect if not properly implemented). Member states are supposed to pass national laws to put the directive into effect. Accordingly, Britain was required to amend its equality legislation so far as this did not already give the protection required by the Directive.
Nevertheless a directive can – and indeed should – be considered by the courts of member states, where the court decides that domestic legislation fails to implement the directive. Also courts of member states are bound by decisions of the EU Court in Luxembourg on how directives are interpreted, for example on the meaning of ‘disability’ in the Framework Employment Directive. After Brexit the UK is no longer a member state. Even so, in the interests of legal certainty, UK legislation says that after 2020 the UK courts should continue to follow the Directive and normally EU Court decisions unless and until British legislation is amended: below How do UK courts take the directive into account?
Where may EU law be affecting UK courts’ interpretation of the Equality Act now?
Meaning of ‘disability’
The Equality Act, like the DDA previously, contains a detailed definition of disability. However the definition must not be narrower than in the directive. The UK courts accordingly take into account decisions of the EU Court of Justice of the European Union (ECJ) on the meaning of disability. See particularly Disability: ‘Normal day-to-day activities’>EU law: ‘normal day-to-day activity’ is very wide in employment claims.
Ring v Dansk almennyttigt Boligselskab, EU Court of Justice (ECJ), 2013
Like the court’s previous decision in Chacón Navas (2006), the Ring decision may be particularly useful to UK claimants whose impairment has a substantial effect only on work-related activities which might not normally be seen as a ‘normal day-to-day activity’, eg making presentations or doing job interviews. (See Chacón Navas: Relevance to stammering).
The Ring decision is also important in incorporating the social model into the directive’s concept of disability, including the barriers created by people’s attitudes. It remains to be seen whether the case will lead to less emphasis on whether an impairment has a significant enough effect on a person’s abilities to be a ‘disability’, and more on barriers created by attitudes and the environment.
Paterson v Commissioner of Police of the Metropolis is an important UK case in which the Employment Appeal Tribunal cited the European court decision Chacón Navas, to support a decision that even a high pressure exam for promotion is a ‘normal day-to-day activity’.
EU law is influencing how far people who are technically ‘self-employed’ can claim under the Equality Act. This includes the issue of people in the ‘gig economy’. In 2019 an employment tribunal asked the EU court how far it makes a difference if the individual is given the right to substitute someone else to do a job. See Employees, workers and beyond.
Work placements related to education courses
In Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust, 2016, the Court of Appeal ‘re-interpreted’ the Equality Act to comply with the directive, so that students discriminated against by a work placement provider are not left without a claim. See Work placements related to education courses.
Discrimination by association
The wording of the Equality Act 2010 now allows a claim for discrimination by association in some cases (following changes made to disability discrimination legislation to reflect the directive, below). However the scope of ‘discrimination by association’ is still being worked out. For example:
- Lee v Ashers Bakery (‘gay cake’) case, 2018 – the Supreme Court held that a refusal to bake a cake with a message supporting gay marriage was not discrimination by association because the objection was to the message, not to any particular person or persons;
- Thompson v Central Bus, 2015 – the EAT applied a case which held that the key issue is not how far there is some “association” between the claimant and the disabled person, but was the discrimination because of a disability (of another person). The Thompson case was actually on victimisation ‘by association’:
Victimisation ‘by association’?
The wording of the Equality Act now allows a claim for discrimination by association in some cases. However its wording does not allow a claim for victimisation where the protected act (eg a claim for discrimination) is done by someone else, and the claimant has not themself done some protected act in relation to the claim. This wording may contravene the directive so that the Act has to be re-interpreted. See Victimisation>Victimisation ‘by association’?
Jessemey v Rowstock was a case in which the strict wording of the Equality Act indicated that post-employment victimisation was not covered by the Equality Act 2010. However the EU Framework Employment Directive required it to be covered. The Court of Appeal in 2014 held there was an error in the Act which the court could correct, so the Equality Act 2010 should be interpreted to include post-employment victimisation. For more see Victimisation: Is post-employment victimisation covered?
Wider jurisdiction over non-UK employments
Where British legislation implements an EU directive, the courts have been willing to extend the normal territorial scope of the British law to give an effective remedy to EU rights. See Employment: Connection with Great Britain: Wider scope through European Union (EU) law?
A volunteer tried unsuccessfully to rely on the directive in X v Mid Sussex Citizens Advice Bureau. She argued that her volunteering was protected under the Directive, even though the wording of the DDA (which then applied) did not cover it. The Supreme Court rejected her claim in December 2012. It held that – so far as relevant to her case – volunteers were not within the directive. On volunteering generally, see Volunteers.
How do UK courts take the directive into account?
Interpreting Equality Act so as to comply with Directive (Marleasing principle)
UK courts and tribunals need to interpret UK legislation “so far as possible” to offer at least as much protection as the directive. This is often known as the principle in Marleasing.
This is by far the most important way in which UK courts use the Directive as regards the Equality Act. The principle should continue to apply after Brexit, ie after 31st December 2020, except so far as the Equality Act is amended after that date: see Effect of EU law when interpreting Equality Act from 2021>Marleasing principle: interpreting the Equality Act to conform with the directive.
The principle is not limited to situations where the Equality Act is ambiguous. The Employment Appeal Tribunal has said (in a case on the Disability Discrimination Act) that even if the British statute is clear, wording can be written in to change its meaning; however, the courts cannot change the statute in a manner which is not “compatible with the underlying thrust of the legislation” or which is “inconsistent with the scheme of the legislation or its general principles.” (EAT in Coleman v Attridge Law). As discussed at the link above, this too seems to continue after Brexit, subject to any post-2020 amendment of the Equality Act.
From 2021 the Supreme Court and Court of Appeal can depart from pre-2021 decisions of the EU Court on the meaning of the directive – even though it seems these courts should not “normally” depart from them. However I suggest these courts must still apply Marleasing principle so long as the Equality Act is unamended – even if based on a different interpretation of the Directive from that of the EU Court.
Examples of applying the Marleasing principle
In Paterson v Commissioner of Police of the Metropolis, the Employment Appeal Tribunal (EAT) held that the impairment’s effect on a high pressure exam for promotion was an effect on a ‘normal day-to-day activity’. The EAT said it would have interpreted the UK definition of disability as it did anyway just looking at domestic law. In any event though it was bound to reach that interpretation by the European Court decision in Chacón Navas.
In Coleman v Attridge Law, the Employment Appeal Tribunal held that the Disability Discrimination Act (DDA) can and should be interpreted – indeed reworded – so as to include direct discrimination and harassment related to someone else’s disability in employment cases. (The wording of the Equality Act 2010 is wider than the DDA, so as to include this.)
Direct effect (public sector employers)
Direct effect is only relevant if the UK legislation cannot be re-interpreted to comply with the Directive under the Marleasing principle above. I can’t think of any disability discrimination case where a re-interpretation was held not to be possible.
However if re-interpretation under Marleasing is not possible, and the employer is public sector, the court can generally enforce the directive against the employer by giving it ‘direct effect’, at least up to 31st December 2020. The principle of direct effect does continue to apply after 2020 (ie after Brexit), but subject to some rather unclear preconditions which will have to be clarified by the UK courts: see Effect of EU law when interpreting Equality Act from 2021>Direct effect. These preconditions are not relevant if the statute can be reinterpreted under the Marleasing principle above, which is doubtless what claimants will try and argue first.
So far as direct effect after 2020 is not excluded by those preconditions, the UK court can give the Directive “direct effect” if the employer is a public body, for example a government department or local authority. The Directive needs to be unconditional and sufficiently precise, but that test is interpreted quite widely. Where a directive has direct effect, the UK tribunal or court should decide the case before it by directly applying the provisions of the directive.
Direct effect may allow (indeed require) a tribunal to decide the case against the public body in a way which has no basis in the UK statute, and which perhaps even contradicts the UK statute.
Whilst the principle of “direct effect” is limited to enforcement against public bodies, later cases have held that a similar principle applies to discrimination claims against private sector employers as well:
“Horizontal” direct effect (private sector employers)
It seems that this principle does not apply after 31st December 2020: see Effect of EU law when interpreting Equality Act from 2021>Kücükdeveci principle. In any event, like direct effect it is only needed if re-interpretation under the Marleasing principle (above) is not possible.
Because the Framework Employment Directive implements the fundamental EU right of non-discrimination, it seems likely that – up to the end of 2020 – UK courts and tribunals should give effect to the directive even against a private sector employer, assuming that the UK legislation cannot be re-interpreted under the Marleasing principle.
In the 2010 case of Kücükdeveci, on age discrimination, the EU Court of Justice held that a German court should give effect to the Framework Employment Directive against a private sector employer where the German statute could not be re-interpreted under Marleasing.
There is every likelihood that this also applies to disability discrimination. That view is supported by the later Court of Appeal decision in Benkharbouche. To quote a blog from Cloisters Chambers: “In Benkharbouche v Embassy of Sudan (bailii.org)  … the Court of Appeal held that Directives can be relied on “horizontally” (i.e. between private parties) if the Directive is giving effect to a fundament [sic] right contained in the EU Charter which does not require specific expression in national law, such as the principle of non-discrimination.” I would add that the Court of Appeal in Benkharbouche, summarising the Kücükdeveci case, specifically said that the European Court “held that there was a general principle of non-discrimination in EU law which had to be given effect.”
This principle of relying on a directive against someone other than a member state is sometimes known as “horizontal” direct effect, or the principle in Mangold v Helm.
Amendment of the Equality Act
Up to the end of 2020, Parliament was supposed to amend the UK statute where required to be consistent with the Directive.
Suing government for compensation – Francovich damages
At least where the statute is not reinterpreted, and if a directive does not have direct effect, then up to the end of 2020 an individual who suffers loss as a direct result of the UK’s failure to implement the directive may be able to sue the UK government for compensation for failing to implement it. This principle was laid down in Francovich v Italy (wikipedia.org). A claim would be in the county court or High Court, not the employment tribunal.
It would have to be considered whether this was still relevant to the Framework Employment Directive, given that up to the end of 2020 it seemed to have horizontal direct effect against private sector employers anyway.
Anyway such claims cannot be made after the end of 2020: Effect of EU law when interpreting Equality Act from 2021>Francovich damages.
Importance of UN Convention in interpreting the directive
In December 2010 the EU became a party to the UN Convention on the Rights of Persons with Disabilities (CRPD). So far as possible, the Framework Employment Directive must be interpreted in a way that is consistent with this Convention:
Ring v Dansk almennyttigt Boligselskab, 2013, EU Court of Justice (ECJ)
The ECJ emphasised the importance of the CRPD, which the EU ratified in 2010. The court said the provisions of the CRPD are now an integral part of the European Union legal order. The EU’s Framework Employment Directive must, as far as possible, be interpreted in a way that is consistent with the CRPD.
In the present case, the ECJ took the CRPD into account in interpreting both the meaning of disability, and the duty to make reasonable adjustments.
Changes made to British disability discrimination legislation to reflect the directive
In the Equality Act 2010
In general the Equality Act 2010 was formally brought into force in October 2010. However, as regards employment, the changes below were or may arguably have been already in effect, as being required by European Union law.
- Discrimination by association. In Coleman v Attridge Law (July 2008), the European Court decided that the directive covers direct discrimination or harassment of an employee by reason of another person’s disability. UK tribunals subsequently held that the Disability Discrimination Act 1995 must be re-interpreted to give effect to this (under the Marleasing principle). The Equality Act 2010 uses new wording to cover this more clearly, and also goes beyond the requirements of the directive by prohibiting discrimination by association in areas other than employment, such as provision of services. More on discrimination by association.
- Perceived disability. It has been argued that EU law requires direct discrimination and harassment to be unlawful against someone who was mistakenly thought to have a disability. The courts have not had to decide the EU law position, but have held that in any event this is covered under Britain’s Equality Act 2010. More on perceived’ disability.
- Harassment: Protection against harassment under the DDA was probably too narrow. Again the Equality Act 2010 has made changes. More on harassment.
- Justification: My view was that under European Union law the threshold for “justification” of (indirect) discrimination in employment should have been higher than the threshold used in practice under the DDA. The Equality Act 2010 has now changed the British justification test to that used in Europe.
- abolition of the exemption for employers with less than 15 employees;
- DDA extended to cover most occupations previously excluded from its employment provisions, eg police, prison officers, fire-fighters; and
- an employer can no longer justify ‘direct discrimination’.
Changes required by the directive in relation to post-16 education came into effect in September 2006.
The background: European Union Treaty
The 1997 Treaty of Amsterdam introduced an express basis for EU legislation to combat disability discrimination. This is now in Article 19(1) of the Treaty on the functioning of the European Union (eur-lex.europa.eu). Before December 2009, when the Lisbon Treaty came into force, it was Article 13 of the ‘Treaty establishing the European Community’. The current Article 19(1) reads:
Without prejudice to the other provisions of the Treaties and within the limits of the powers conferred by them upon the Union, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.
Article 19(1) does not prohibit discrimination (though it seems there is a general principle (below) of European law which prohibits it). Rather, Article 19(1) provides authority for the European Union to pass legislation to combat discrimination, in
As well as the authority in Article 19, Article 10 of the Treaty requires the EU to combat discrimination based on disability when defining and implementing its policies and activities.
General principle of non-discrimination
In the 2010 case of Kücükdeveci on age discrimination – but presumably the same applies to disability – the European Court said it was applying European primary law rather than the Framework Employment Directive as such. The Court said that the Framework Employment Directive gives expression to a general principle of European Union law on non-discrimination, rather than itself laying down the principle of equal treatment in the field of employment and occupation.
- European law and equality: An introduction (equallyours.org.uk) – leaflet from the Equality and Diversity Forum.
- The EU’s Protection against discrimination (eur-lex.europa.eu)
- Article by Richard Whittle published in the European Law Review 27(3): 303-326: “The Framework Directive for equal treatment in employment and occupation: an analysis from a disability rights perspective.”, http://shura.shu.ac.uk/706/1/fulltext.pdf
- Handbook of European non-discrimination law, 2018 (fra.europa.eu) – available to download as a pdf.
- My links page includes some websites relating to new laws under the directive in various European counties.